Brock v. Louisville & N.R. Co.

• Decision Date: 01 February 1899
• Parties: BROCK v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

26 So. 335

122 Ala. 172

BROCK v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

February 1, 1899

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by John L. Brock against the Louisville & Nashville Railroad Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

The first count in the complaint is against the defendant company as a common carrier in Code form. This suit was commenced September 21, 1895. The complaint was amended afterwards by leave of the court without objection by defendant, by adding a count for the failure by defendant company to deliver the goods received by it, as a warehouseman, for a reward. In neither count is there any averment of negligence on the part of defendant, or its servants or agents, for a failure to deliver the goods. The first, counts merely on the liability of defendant as a common carrier, and the second, against it as a warehouseman for failure to deliver the goods shipped. To the complaint as first filed, the defendant pleaded merely the general issue. After amendment, at another term, by adding the second count, it pleaded a special plea to the entire complaint, in substance that in and by the contract between plaintiff and defendant, it was expressly agreed that the defendant should not be liable for any loss or damage to said goods by fire or other casualty, while in the depot or other place of reception of said goods at point of delivery; that this provision was reasonable; that the goods were destroyed by fire originating from cause unknown to defendant; that the goods were in said depot at point of delivery eight days after their arrival at said point, and that plaintiff was notified of their arrival, and had reasonable time to remove them after such notice and before the fire.

The plaintiff demurred to this plea on grounds substantially that defendant was prohibited from contracting against its own negligence; that there is nothing in said plea which shows that said fire was not caused by the negligence of defendant and that the agreement set up in the plea, for aught appearing, was void as against public policy. The demurrer was overruled.

The plaintiff replied, first, that defendant did not properly watch and guard the warehouse in which the goods were stored whereby the same were destroyed by fire; second, that the fire occurred on the 15th February, 1895, about 9 o'clock p. m., and that on that same day, between 4 and 5 o'clock p. m., plaintiff by his servant and agent, one Thompson demanded said goods, long before the fire occurred, and defendant had ample opportunity to deliver the goods to plaintiff, but defendant failed and refused to deliver them, and refused to let plaintiff's agent and servant get said goods, although demanded by him; and several hours thereafter, said goods were destroyed by fire through the fault and wrong of defendant; and third, that at the time the goods were destroyed, defendant, under and by said contract mentioned in said plea, was holding said goods as a bailee for hire, and several hours before said fire occurred, and at a reasonable time before its occurrence, plaintiff, by his agent and servant, demanded the delivery of said goods to him, but defendant, through its own fault and wrong, refused to deliver the goods to plaintiff, whereby they were lost to him.

The defendant filed a rejoinder to the second of these replications, in which it was averred that plaintiff's agent and servant, Thompson, made no demand or request for the goods, but at the close of the business hours, and as dark was coming on, on the evening of the fire, Thompson was at the depot of defendant, about 5 o'clock, but did not demand said goods; that the depot, at that season, was closed at 5 o'clock, and this fact was known to the plaintiff and his servant, Thompson; that this time of day, at that season, was about or after sunset, and was the usual time of closing said depot; that the lamps were lit in the office to furnish lights at that time; that no request was made for said goods and refused; that defendant was not a bailee for hire, but a mere naked bailee; that said plaintiff's said servant knew it was closing time, or within five minutes thereof, when he was present, and asked for said goods, if any request was made by him for the same, and there was no time to deliver the same. The plaintiff demurred to this rejoinder, on several grounds, and his demurrer was sustained.

The case was tried on the plea of the general issue, and on issue joined on plaintiff's said replication. The facts pertaining to the request for the trial by jury, and the court's ruling thereon, are sufficiently stated in the opinion.

Both parties demanded in writing a special finding on the facts by the presiding judge, which finding was made and reduced to writing and duly signed by the presiding judge and filed in the cause. Under the opinion on the present appeal, it is unnecessary to set out the facts of the case or its special finding of the judge. From the finding, so made, the court rendered a judgment in favor of the defendant, to which finding and judgment the plaintiff duly and separately excepted. The plaintiff appeals, and assigns as error the rulings of the trial court to which exceptions were reserved.

S. T. Wert, O. Kyle, and J. M. Chilton, for appellant.

Thos. G. Jones, for appellee.

HARALSON J.

1. The case was tried at the May term, 1896, of said circuit court by...